QUESTION: SELF HELP REMOVING LEASED EQUIPMENT AT WHAT RISK
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Ken:
I have a question about something that happened to me when I owned an alarm firm years ago. A commercial subscriber defaulted on payments for a leased system. This guy was still in business, but eventually closed. The outcome was that he paid a negotiated amount to keep the collection off of his credit report. And claimed a reduction stating he lost money because we knocked out a phone line.
After the usual collection attempts and a letter that services were to be terminated, all done properly, we went to remove the equipment. We found the office was open and went right to the panel to remove it. The owner wasn’t in, but an employee approached us to ask what we were doing. He was shown company ID and informed that we were the alarm company. When he saw that we were removing the panel and not fixing something, he again approached to say we should wait till the owner came back before going any further. The panel was already off the wall with only the phone lines to be respliced so they would have house phones (on one of the 3 lines).
The employee picked up the phone, called 911 and said he needed someone right away. I decided I didn’t want to be arrested for disturbing the peace, so l just cut the wires and left quickly. I told the employee that we would leave as he asked us not to do anything further, and to tell his boss to pay us if he wanted alarm services back. My question is this, could I have been arrested for disturbing the peace if an officer got there before I left? Could I have been arrested even though I did leave if the client wanted to press charges? Did I actually break a law, or by stopping when asked, did I comply with the law? I had the agreement with me, and copies of the letters that were sent. I’ve wondered what would have happened, and if I did anything illegal.
I’ll bet I’m not alone in this situation. Wondering how others handle this also.
Mitch Cohen
Bric Security
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RESPONSE
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Presumably your Commercial Lease permitted you to retrieve the equipment, so there's no liability for doing that. However you are correct that you would be criminally liable if you breach the peace. Also your "self help" leaves you vulnerable to claims that you not only damaged the premises [negligently or maliciously] but that you stole merchandise while on the premises. Or you cut the phone line and are now responsible for the hold up the place had hours later because they couldn't call the police.
Self help as you describe it is risky. I can't say I haven't condoned it in the past but I was probably in one of my flippant moods. Prudence dictates that you either get the consent of the subscriber or you go to court. If you're using the Standard Form Agreement, especially a lease for, you rarely want to go get the equipment. The form provides for an agreed upon value of the installed equipment which becomes due upon the subscriber's default. That amount is going to have far more value to the alarm company than removing the equipment. There are a few alarm companies out there - you know who you are - who would rather remove every stitch of equipment and wire rather than leave anything for the next alarm company. That's a general policy decision rather than a monetary decision on a case by case basis. Not wrong, just different.
Bottom line, you can remove your leased equipment as long as you don't get into a fight over it. But think about suing your sub for the balance of the lease and the value of the installed equipment. You might have to think about getting the All in One lease forms first.
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Question: scanned contract
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Ken,
I have a question, that when a customer signs and scans back the contract by fax especially, it becomes difficult to read (because of the fine print). I am saving and attaching the original emailed contract with the signed one, just concerned that a judge would not accept the difficult to read one.
Gary Puckhaber, President
Action Security & Communications
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Response
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If you are suggesting that the scanned or faxed copy is reduced in size then you should retain the original form. That should be sufficient, though you will probably have to establish that the subscriber read the contract in original form, not the reduced size.
If you're suggesting that your form is written in such small print that copies are generally illegible then I don't think retaining the original is going to be enough. You shouldn't be using a contract with small print. This is a very important issue. The law permits you to limit your liability and you do this by employing technical protective provisions in your Agreement. If you don't word the protective provisions correctly or you don't execute the Agreement properly you have not protected yourself; you've increased your risk for exposure and damages exponentially. Don't do it. Get the Standard Form Agreements today; jus time to start using them next year when you turn over a new leaf.
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